1. There are three requirements that must be satisfied for
evidence to be admitted under K.S.A. 60-455. The district
court must find that (1) the evidence is relevant to prove
one of the facts specified in the statute; (2) the fact is a
disputed, material fact; and (3) the probative value of the
evidence outweighs its potential prejudice.

2. If the requirements for admission of evidence of prior
crimes pursuant to K.S.A. 60-455 are met, the scope of
appellate review is limited to whether the district court
abused its discretion. Judicial discretion is abused when
judicial action is arbitrary, fanciful, or unreasonable.

3. Admission of evidence under K.S.A. 60-455 to show plan
may
be upheld on the theory that the evidence, although
unrelated to the crimes charged, shows the modus operandi or
general method used by a defendant to perpetrate similar but
totally unrelated crimes.

4. A claim that sentencing guidelines departure factors
are not
supported by evidence in the record should be reviewed to
determine whether there is substantial evidence supporting
the court's findings or whether the court's findings are
clearly erroneous. A claim that the departure factors
relied upon by the court do not constitute substantial and
compelling reasons for a departure is a question of law.

5. The district court's comments at the time of sentencing
govern as to the reasons for departure.

6. Whether the district court's findings constitute
substantial
and compelling reasons for departure is a question of law.
The question in this analysis is twofold. First, is a
particular reason given by the sentencing court a valid
departure factor? Second, are the reasons, as a whole,
substantial and compelling reasons for departure in a given
case? Reasons which may in one case justify a departure may
not in all cases justify a departure. Rather, the inquiry
must evaluate the crime and the departure factors as a whole
to determine whether departure in a particular case is
justified. It is a question of what weight to give each
reason stated and what weight to give the reasons as a whole
in light of the offense of conviction and the defendant's
criminal history. The inquiry also considers the purposes
and principles of the Kansas Sentencing Guidelines Act.

7. K.S.A. 21-4716 contains the nonexclusive list of
aggravating
and mitigating factors available for the sentencing court in
deciding whether to depart. Other appropriate aggravating
factors may be considered.

8. Our statutory list of aggravating and mitigating
factors is
nonexclusive. Consequently, the sentencing courts may use
other factors when imposing a departure sentence as long as
there is evidence in the record to support such factors and
the use of the factors would be consistent with the intent
and purposes of the guidelines. When there is reasonable
doubt as to whether the legislature necessarily considered a
factor in establishing the standard sentencing range, the
trial court has discretion to use that factor as a reason
for issuing a departure sentence. Using a history of
unpunished sexual exploitation as a factor to justify a
departure is consistent with the purposes of the sentencing
guidelines.

9. Under an abuse of discretion standard of review, the
question is whether the extent of the sentencing court's
durational departure is consistent with the enacted purposes
and principles of the sentencing guidelines and
proportionate to the severity of the crime of conviction and
the offender's criminal history.

Review of the judgment of the Court of Appeals in an
unpublished decision filed October 9, 1998. Appeal from Sedgwick
district court; JOSEPH BRIBIESCA, judge. Judgment of the Court
of Appeals affirming the district court is affirmed as modified.
Judgment of the district court is affirmed. Opinion filed July
9, 1999.

Elizabeth Seale Cateforis, assistant appellate
defender,
argued the cause, and Jessica R. Kunen, chief appellate
defender,
was with her on the brief for appellant.

Elizabeth L. Rogers, assistant district attorney,
argued the
cause, and Nola Foulston, district attorney, and
Carla J.
Stovall, attorney general, were with her on the briefs for
appellee.

The opinion of the court was delivered by

ABBOTT, J.: This is a direct appeal by defendant Ronnie V.
Tiffany from his conviction of and sentence for one count of
aggravated indecent liberties with a child in violation of K.S.A.
21-3504. We granted defendant's petition for review of the Court
of Appeals' unpublished opinion. (State v. Tiffany, No.
77,835,
filed October 9, 1998.) The Court of Appeals held that the
K.S.A. 60-455 evidence of prior crimes should not have been
admitted because intent was not a disputed material fact, but,
given the record as whole, the admission was harmless error. The
Court of Appeals also held the trial court's findings for
departure were supported by the evidence in the record and
constituted substantial and compelling reasons to depart, and
that the trial court did not abuse its discretion when it doubled
the maximum presumptive sentence.

The victim, S.L., is the 7-year-old granddaughter of
Tiffany's female friend. Evidence was admitted that Tiffany had
S.L. masturbate him and that S.L. saw him ejaculate. Tiffany
testified the act did not occur.

The State moved to admit evidence of prior uncharged sex
crimes that Tiffany had committed with other children and a prior
conviction for indecent solicitation of a child. Tiffany's
attorney objected, claiming that the evidence "mostly goes to
propensity under the theory that if he did something like this
before, he's done it again." The trial court found that the
evidence was relevant and material and that the probative value
outweighed any prejudice. The trial court was very specific in
its ruling that only similar factual situations would be admitted
at the trial.

Tiffany's daughter, T.M.T., testified that Tiffany began
exposing his penis to her when she was 8 or 9 years old and that
she had rubbed his penis at his request on more than one
occasion. Tiffany's other daughter, T.T., testified that Tiffany
had exposed his penis and masturbated in front of her when she
was 5 or 6 years old; that Tiffany had done this more than once;
that she had rubbed Tiffany's penis at his request; and that she
had seen him ejaculate.

C.C. (the victim in Tiffany's indecent solicitation
conviction) testified that when he was 13 or 14 years old,
Tiffany lived with his family. During that time, Tiffany exposed
his penis and masturbated in front of C.C. The parties had
previously stipulated that Tiffany had been convicted of indecent
solicitation of a child in 1990, based on the incident involving
C.C.

A jury convicted Tiffany of one count of aggravated indecent
liberties with a child. Tiffany moved for downward durational
and dispositional departures, and the State moved for an upward
durational departure. At sentencing, the State presented
testimony regarding Tiffany's previous sexual activity with
children.

T., Tiffany's son, testified that at Tiffany's direction, he
had sexual intercourse with his cousin L.R. when he was 15 years
old. Tiffany both demonstrated and orally instructed T. how to
have sex with L.R. so he would look experienced if Tiffany could
arrange for him to be in pornographic movies.

L.R. testified that she began having oral sex and sexual
intercourse with Tiffany at the age of 14, and that during this
same period she had sex with T. at Tiffany's request.

Tiffany's criminal history also included a 1962 rape
conviction in Oklahoma.

I. PRIOR SEXUAL MISCONDUCT

Evidence of prior crimes is inadmissible to show a
defendant's disposition to commit crime, but is admissible to
prove a "material fact including motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident." K.S.A. 60-455. There are three requirements that
must be satisfied for evidence to be admitted under K.S.A.
60-455. The district court must find that

"(1) the evidence is relevant to prove one of the facts
specified
in the statute; (2) the fact is a disputed, material fact; and
(3) probative value of the evidence outweighs its potential
prejudice. State v. Nunn, 244 Kan. 207, 211, 768 P.2d
268
(1989). If the requirements for admission of evidence of prior
crimes pursuant to K.S.A. 60-455 are met, the scope of appellate
review is limited to whether the trial court abused its
discretion. State v. Blackmore, 249 Kan. 668, Syl.
¶ 2, 822 P.2d
49 (1991). Judicial discretion is abused when judicial action is
arbitrary, fanciful, or unreasonable. If reasonable persons
could differ as to the propriety of the action taken by the trial
court, then it cannot be said that the trial court abused its
discretion. State v. Wagner, 248 Kan. 240, 242, 807
P.2d 139
(1991)." State v. Lane, 262 Kan. 373, 388, 940 P.2d 422
(1997).

Tiffany's defense was that the alleged conduct never took
place. Therefore, he argues that none of the factors contained
in K.S.A. 60-455 were substantially at issue. He testified in
his own defense at trial and contended that while he and S.L.
waited for S.L.'s grandmother in the hospital parking lot, they
played cards and S.L. watched traffic. He denied all of S.L.'s
claims of sexual misconduct.

The Court of Appeals relied on State v. Dotson,
256 Kan.
406, 886 P.2d 356 (1994), in holding that the prior crimes
evidence should not have been admitted because intent was not a
disputed material fact. However, the Court of Appeals panel held
that, given the record as a whole, the admission of the 60-455
evidence was harmless error. See K.S.A. 60-261.

We disagree with the Court of Appeals' reasoning but agree
with the result. In State v. Morgan, 207 Kan. 581, 582,
485 P.2d
1371 (1971), the trial court, in a forcible rape case, allowed
two women to testify they had been forcibly raped by the
defendant under "somewhat similar circumstances." This court
allowed the testimony to show, among other K.S.A. 60-455 factors,
intent and plan.

In State v. Masqua, 210 Kan. 419, 502 P.2d 728
(1972), cert.
denied 411 U.S. 951 (1973), a forcible rape case, this court
allowed two women to testify to offenses of a similar character
by the defendant to show, among other K.S.A. 60-455 elements,
intent and plan or mode of operation.

In State v. Hampton, 215 Kan. 907, 909-10, 529 P.2d
127
(1974), overruled on other grounds State v. Cantrell,
234 Kan.
426, 673 P.2d 1147 (1983), cert. denied 469 U.S. 817
(1984), a
rape case, the court allowed three women to testify to attacks
carried out in a similar manner. We affirmed the use of such
evidence to show intent and plan or mode of operation. This
court commented:

"Although issues going to identity, knowledge, absence of
mistake, etc., were not present in this trial, the force
displayed on similar occasions had a material bearing as to the
intent with which the defendant approached the victim in this
case, and his plan of procedure should he encounter opposition.

. . . .

"We believe the probative value of the evidence sufficiently
outweighed its prejudicial effect so that its admission was
proper within the limits of judicial discretion. (State v.
Nading, 214 Kan. 249, 255, 519 P.2d 714.)" 215 Kan. at
909-10.

In State v. Gonzales, 217 Kan. 159, 535 P.2d 988
(1975), a
rape case, two women were allowed to testify to sexual attacks
that were dissimilar except that force had been used to prove
intent, motive, and plan of operation. In that case, Justice
Prager, who had joined the majority in Hampton, changed
his mind
on intent. Justice Prager was of the opinion it is a woman's
intent that is in issue.

In Hampton, Justice Fontron, speaking for the
court, stated:

"Either the use of force or the use of overbearing fear is a
necessary ingredient of the offense of rape. The sexual act must
be committed against the will and without the consent of the
woman; her resistance must be overcome. Thus it is that the
intent with which a marauding male approaches a member of the
opposite sex in seeking sexual gratification becomes important.
Is it his intent to satisfy his lust at any cost, that
is,
against the lady's will and by overcoming her resistance, or is
it simply to find an accommodating partner? If the first be
his
intent, and the sexual act is accomplished by destroying
resistance, the statute has been violated. On the other hand, if
it be his intent merely to cajole the lady into
acquiescence, and
he is successful, intercourse is on a mutually enjoyable basis,
and rape, it is not. Intent and plan of operation are highly
significant; they are relevant to the issue of consent or lack
thereof." (Emphasis added.) 215 Kan. at 909.

In Gonzales, in his dissent, Justice Prager stated:
"In the
instant case there is very little similarity between the crime
charged and the other offenses admitted into evidence. Certainly
they do not evidence any sort of preconceived pattern or plan of
operation." 217 Kan. at 163.

In the case before us, the evidence admitted in the guilt
phase was limited to a strikingly similar method of operation.
Similar words were used to entice the victims into performing the
requested acts, the victims were all about the same age, and the
criminal conduct was performed in the same manner.

In State v. Fisher, 222 Kan. 76, 563 P.2d 1012
(1977), in a
case of indecent liberties with a child and aggravated sodomy,
testimony of the 11-year-old victim as to three other uncharged
sexual acts (almost identical to the acts in this case) was
admitted to show intent, plan, and design. This court said:

"A necessary element of proof of indecent liberties with a
child is the specific intent to arouse or satisfy the sexual
desires of either or both. The other crimes evidence was
probative to show such intent. Further, the three like
occurrences in the preceding year reflect an antecedent mental
condition that evidentially points to the doing of the acts
charged. The occurrences suggest a plan or design directed
toward the doing of the crimes charged.

"We believe the probative value of the evidence sufficiently
outweighed its prejudicial effect so that its admission was
proper within the limits of judicial discretion. [Citations
omitted.]" 222 Kan. at 85.

Justice Prager concurred in the granting of a new trial (for
reasons not relevant here) and again set forth the same reasoning
he did in Gonzales. No other members of the court
joined Justice
Prager's dissent.

In State v. Damewood, 245 Kan. 676, 783 P.2d 1249
(1989)
(indecent liberties with a child and aggravated criminal sodomy,
among other charges), evidence was admitted of "strikingly
similar" acts and modus operandi to show intent and plan under
K.S.A. 60-455. This court stated:

"Defendant asserts that intent and plan were not appropriate
reasons for the admission of the testimony and that corroboration
is not one of the elements recognized by the statute. He asserts
intent was not an issue in this case because the mere doing of
the act suffices to show intent. He also asserts the evidence
was not admissible to show plan because no connection existed
between the alleged acts with M.S.R. and those with the victim in
this case.

"In State v. Fisher, 222 Kan. 76, 85, 563 P.2d 1012
(1977),
we held evidence of prior similar sexual acts was admissible to
prove intent and 'plan or design.' In State v.
Crossman, 229
Kan. 384, 624 P.2d 461 (1981), the defendant was convicted of two
counts of indecent liberties with a child and one count of
aggravated sodomy. Evidence of prior sexual acts with the same
child was admitted independent of K.S.A. 60-455 under our rule
that in cases involving illicit sexual activity with a child
evidence of prior similar acts between the same parties is
admissible independent of K.S.A. 60-455. However, in doing so
the court commented, 'This is not to say that evidence of prior
acts could not have been introduced pursuant to K.S.A. 60-455 to
establish intent.' 229 Kan. at 387 (citing Fisher). We
conclude
that the testimony of M.S.R. was properly admitted to show
intent.

"We are also of the opinion it was admissible to show the
plan or modus operandi of the defendant. Admission of evidence
under 60-455 to show plan has been upheld under at least two
theories. In one the evidence, though unrelated to the crimes
charged, is admitted to show the modus operandi or general method
used by a defendant to perpetrate similar but totally unrelated
crimes.

. . . .

"We conclude that, under the facts of this case, it was not
error to admit the testimony of M.S.R. for the purpose of proving
intent and plan pursuant to K.S.A. 60-455." 258 Kan. at 681-83.

"We have consistently stated that appellate review of the
admission of prior crimes evidence is 'limited to whether the
trial court abused its discretion or whether the trial court
admitted clearly irrelevant evidence.' State v.
Blackmore, 249
Kan. at 671.

". . . Damewood's criminal activities followed a pattern of
becoming acquainted with the 14-year-old and eventually asking
him to assist in Damewood's beekeeping operation. On each
occasion Damewood arranged to pick up the 14-year-old under the
guise of assisting in the beekeeping activity. Each time,
Damewood drove the boy to a secluded area and forced the boy to
engage in the sexual activities. Damewood, 245 Kan. at
678-79.

"Following K.S.A. 60-455, the trial court in
Damewood
permitted testimony by another boy regarding a previous similar
encounter with Damewood. 245 Kan. at 679-80.

"Clements argues that because he denied committing the
crimes, 'intent is proved by proving the crimes'; thus, prior
crimes evidence has no probative value. He also reasons that
prior crimes evidence 'is relevant to show plan only when that
evidence demonstrates a preexisting design or scheme. . . . It
is the existence of a structured design, not common
features,
which determines admissibility.'

"In Damewood, we dealt with arguments similar to
those
Clements raises here. See 245 Kan. at 681-82.

"Clements attempts to discount the applicability and wisdom
of Damewood on the admission of the testimony to prove
intent and
plan. Regarding the admission to show intent, Clements argues
that State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989),
and
State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), are
controlling. According to Clements, these cases stand for the
proposition that '[i]ntent becomes an issue for the purposes of
K.S.A. 60-455 only when the defendant admits doing the act in
question but maintains that he did it in innocence.'

"In Clements' situation, intent must be proved to support a
charge of sexual battery (a backrub does not, by itself,
necessarily constitute sexual battery).

"Damewood is controlling on the issue of plan. The
general
method used by Clements to entice young boys is similar enough to
show a common approach that is tantamount to a plan.

"Clements' argument arising from Graham and
Nunn is not
persuasive." 252 Kan. at 89-90.

Damewood and Clements control this case.
As stated in
Clements, "The general method used . . . is similar
enough to
show a common approach that is tantamount to a plan." 252 Kan.
at 90.

"A claim that sentencing guidelines departure factors are
not supported by evidence in the record should be reviewed to
determine whether there is substantial evidence supporting the
court's findings or whether the court's findings are clearly
erroneous. A claim that the departure factors relied upon by the
court do not constitute substantial and compelling reasons for a
departure is a question of law."

"The court's comments at the time of sentencing govern as to
the
reasons for departure." 257 Kan. at 623. Here, the district
court relied on the provisions of K.S.A. 21-4716(b)(2)(G) and
K.S.A. 22-3717(d)(1)(C), and found that the crime of conviction
was a "crime of extreme sexual violence" and that Tiffany was a
"predatory sex offender," as those terms are defined pursuant to
K.S.A. 21-4716.

K.S.A. 21-4716 was amended in 1996. The 1994 version
applies in this case, however, because the crime was committed
between June 27, 1995, and June 29, 1995. "[T]he fundamental
rule is that a person convicted of a crime is given the sentence
in effect when the crime was committed. See State v.
Reed, 248
Kan. 792, 795, 811 P.2d 1163 (1991)." State v. Fierro,
257 Kan.
639, 649, 895 P.2d 186 (1995).

"A claim that the departure factors relied upon by the
sentencing court do not constitute substantial and compelling
reasons for departure is a question of law for which an appellate
court's review is unlimited. State v. Cox, 258 Kan.
557, 575,
908 P.2d 603 (1995); State v. Gideon, 257 Kan. 591, Syl.
¶ 20,
894 P.2d 850 (1995). A clearly erroneous standard applies to a
claim that the evidence was insufficient to justify a departure.
State v. Gideon, 257 Kan. 591, Syl. ¶ 20."

At sentencing, the trial court found that Tiffany's current
crime of conviction, aggravated indecent liberties with a child,
is a "crime of extreme sexual violence, as defined in K.S.A.
21-4716." The trial court also found that based on Tiffany's
current crime of conviction and his previous conviction for rape,
Tiffany is a "predatory sex offender, as defined in K.S.A.
21-4716." The trial court further found that "pursuant to K.S.A.
22-3717, the current crime of conviction, aggravated indecent
liberties with a child, is both a sexually violent and a sexually
motivated offense."

A crime of extreme sexual violence is "a crime involving an
act of sexual intercourse, sodomy or lewd fondling and touching
with any child who is less than 14 years of age." K.S.A.
21-4716(b)(2)(G)(i)(c).

Tiffany argues that the trial court's findings do not
constitute substantial and compelling reasons for departure.
Tiffany acknowledges that by defining a "sexually violent crime"
to include aggravated indecent liberties with a child, the
legislature clearly indicated the seriousness of sex crimes
against children. Tiffany quotes State v. Zuck, 21 Kan.
App. 2d
597, Syl. ¶ 3, 904 P.2d 1005, rev. denied 258 Kan.
863 (1995),
wherein it was stated that"[i]f one of the purposes of the
sentencing guidelines is to ensure uniformity in sentencing then
departures should only be allowed in extraordinary cases."
Tiffany then argues that the conduct alleged does not make his
case an extraordinary case. He maintains that he was not accused
of a pattern of abuse toward S.L., and it was not alleged there
was any touching or penetration of S.L. Therefore, he argues the
crime of conviction was no more egregious than any other
conviction for aggravated indecent liberties with a child.

This argument is not persuasive. The Zuck court
examined
the question of whether a pattern of conduct is a justification
for a departure sentence and noted that in Gideon, 257
Kan. at
624, this court held that because 21-4716 provides a nonexclusive
list of aggravating and mitigating factors available to the
sentencing court in deciding whether to depart, other appropriate
aggravating factors not contained in the statute may be
considered.

"Whether the trial court's findings constitute substantial
and compelling reasons for departure is a question of law. The
question in this analysis is twofold. First, is a particular
reason given by the sentencing court a valid departure factor?
Second, are the reasons, as a whole, substantial and compelling
reasons for departure in a given case? Reasons which may in one
case justify departure may not in all cases justify a departure.
Rather, the inquiry must evaluate the crime and the departure
factors as a whole to determine whether departure in a particular
case is justified. It is a question of what weight to give each
reason stated and what weight to give the reasons as a whole in
light of the offense of conviction and the defendant's criminal
history. The inquiry also considers the purposes and principles
of the KSGA." 258 Kan. at 83.

In the present case, the trial court considered Tiffany's
argument that the rape conviction should be disregarded because
of its age and ruled:

"Now, granted, the rape conviction stems from an incident that
occurred back in 1962, some 34 years ago. And granted, that the
Kansas Supreme Court has stated specifically in the case of
State
v. Richardson, that the Court can take into consideration
the age
of the last felony conviction of the defendant. . . . I think the
Richardson case can be distinguished from the present
case, in
that in the present case, we are talking about a violent
conviction. And the Court is not of a mind to disregard the rape
conviction."

The sentencing court may disregard a prior conviction due to
remoteness of time. However, the sentencing court is not
required to do so and a decision to not disregard such a
conviction does not mean the court's findings are clearly
erroneous. Tiffany's argument that although the statutory
definition of "predatory sex offender" is met in his case, this
finding does not constitute a substantial and compelling reason
for departure, is not persuasive.

Tiffany also argues that in the State's motion for upward
departure, it relied heavily on the uncharged past misconduct
alleged by Tiffany's children and others. Tiffany asserts that
the extent of the departure imposed suggests the trial court was
prejudiced by the testimony of those relating uncharged past
conduct.

In Zuck, the Court of Appeals set forth the correct
view of
the law. The Zuck court noted:

"K.S.A. 1994 Supp. 21-4716 contains the nonexclusive list of
aggravating and mitigating factors available for the sentencing
court in deciding whether to depart. Our Supreme Court has
recognized that other appropriate aggravating factors may be
considered. State v. Gideon, 257 Kan. at 624." 21 Kan.
App. 2d
at 605.

The Zuck court reasoned:

"The complaint here charged that the attempted rape took
place on or about September 17, 1993. The record indicated that
defendant had been molesting the victim for a period of years.
Consequently, there is evidence to support the finding there was
conduct that occurred earlier that was not covered by the instant
conviction." 21 Kan. App. 2d at 605.

Thus, the Zuck court held:

"Recent Kansas cases have illustrated a variety of factors
that may be used in imposing a departure sentence. See State
v.
Grady, 258 Kan. 72, and State v. Richardson, 20
Kan. App. 2d 932,
901 P.2d 1 (1995). Our statutory list of aggravating and
mitigating factors is nonexclusive. Consequently, the sentencing
courts may use other factors when imposing a departure sentence
as long as there is evidence in the record to support such
factors and the use of the factors would be consistent with the
intent and purposes of the guidelines. 'When there is reasonable
doubt as to whether the legislature necessarily considered a
factor in establishing the standard sentence range, the trial
court has discretion to use that factor as a reason for issuing a
departure sentence.' Grady, 258 Kan. 72, Syl. ¶ 7.
Because
there is no indication that our legislature considered
restricting the use of a defendant's prior uncharged criminal
conduct in establishing the presumptive sentence, the sentencing
court here had the discretion to consider such conduct as a
departure factor. Importantly, one of the purposes of the
guidelines is to ensure public safety. Using a history of
unpunished sexual exploitation as a factor to justify a departure
is consistent with the purposes of the guidelines." 21 Kan. App.
2d at 606.

When ruling on Tiffany's challenge to the departure
sentence, the Court of Appeals stated:

"K.S.A. 21-4716(b)(2)(G) provides that if the defendant's
current crime of conviction is one of extreme sexual violence and
he is a predatory sex offender, then a substantial and compelling
reason exists for departure as a matter of law. K.S.A.
21-4716(b)(2)(G)(i)(c) states that a crime of extreme sexual
violence is one 'involving an act of . . . lewd fondling and
touching with any child who is less than 14 years of age.'
K.S.A. 21-4716(b)(2)(G)(ii)(a) defines a predatory sex offender
as one who has been convicted of a crime of extreme sexual
violence and has one or more prior convictions of any crimes of
extreme sexual violence. Upon finding that a current conviction
was sexually violent or sexually motivated, the district court
may extend the postrelease supervision period to 60 months.
K.S.A. 22-3717(d)(1)(C)(i)."

The Court of Appeals appropriately held that "[t]he district
court's findings for departure are supported by the evidence
in the record and constitute substantial and compelling
reasons."

III. ABUSE OF DISCRETION

Tiffany and the Court of Appeals concluded this issue is to
be decided under the abuse of discretion standard, relying on
State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996).
Although the
Favela court determined that this court's power to
review a
downward durational departure should be limited to the
abuse of
discretion standard, our decision would also apply to an upward
durational departure. In Favela, we stated:

"Since the legislature did not find it necessary to
specifically
state that this court has the power to review the extent of
departure, we do not believe that the legislature intended to
allow the court the power to review the extent of sentences de
novo. Rather, since the power to review the extent of departure
is based on a mere inference, the court should not give itself
more power than the legislature intended. Thus, our review
should be limited to the weakest type of review--abuse of
discretion. If the legislature wishes the court to have greater
review power, it should specifically and clearly grant such
power. Further, determining the appropriate extent of departure
and whether the sentence is proportionate to the severity of the
defendant's crime of conviction is more of a fact question.
Thus, deference should be granted to the sentencing judge, who
has had first-hand experience with the defendant and the facts of
the case, in determining the extent of departure.

"Under an abuse of discretion standard of review, the
question is whether the extent of the sentencing court's
durational departure is consistent with the 'enacted purposes and
principles of [the] sentencing guidelines' and 'proportionate to
the severity of the crime of conviction and the offender's
criminal history.' K.S.A. 1994 Supp. 21-4719(b)(1). In
answering this question, the State points out that a trial court
abuses its discretion if no reasonable person could agree with
the trial court. State v. Griffin, 246 Kan. 320, 326,
787 P.2d
701 (1990); Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d
124
(1988). If any reasonable person could agree, the appellate
court will not disturb the trial court's decision." 259 Kan. at
243-44.

K.S.A. 21-4719(b) provides:

"(b) When a sentencing judge departs in setting the duration
of a presumptive term of imprisonment: (1) The judge shall
consider and apply the enacted purposes and principles of
sentencing guidelines to impose a sentence which is proportionate
to the severity of the crime of conviction and the offender's
criminal history; and

(2) the presumptive term of imprisonment set in such a
departure shall not total more than double the maximum duration
of the presumptive imprisonment term."

With a criminal history score of 3-D on the nondrug grid,
Tiffany's presumptive sentence range was 74 to 83 months. See
K.S.A. 1994 Supp. 21-4704. Tiffany was sentenced to a period of
incarceration of 166 months, which is double the upper limit in
the 3-D grid box. Tiffany acknowledges that aggravated indecent
liberties with a child, as a severity level 3 crime, is among the
most serious crimes in Kansas, but argues that a single instance
of S.L. touching his penis does not justify departure of double
the presumptive sentence. He asserts that the facts of this case
would have to be substantially more egregious than the typical
aggravated indecent liberties to support such a departure.

Tiffany further argues that the State presented a great deal
of evidence of uncharged sexual misconduct at trial as evidenced
by the testimony of two of his daughters and the victim of the
misdemeanor charge. At sentencing, the State presented the
testimony of Tiffany's son and his niece. Thus, Tiffany
maintains the sentencing court's sentencing was a result of
partiality and prejudice because it was influenced by a
substantial amount of prejudicial testimony portraying him as a
longtime child molester.

Tiffany asserts that "[e]ven though the sentencing court did
not explicitly state that this evidence had influenced the
departure decision, it is pretty clear that it did. How could it
not?" The sentencing court based its departure on the fact that
Tiffany was a sexual predator and the crime of conviction was one
of extreme sexual violence. The statute specifically provides
that such reasons are substantial and compelling reasons for
departure. "The court's comments at the time of sentencing
govern as to the reasons for departure." Gideon, 257
Kan. at
623.

The sentencing guidelines, pursuant to K.S.A. 21-4716(2),
provide a nonexclusive list of aggravating factors which may be
considered in determining whether substantial and compelling
reasons exist for departure. One of the reasons listed is that a
defendant's current crime of conviction is a crime of extreme
sexual violence and he or she is a predatory sex offender.
Tiffany meets the definition of a predatory sex offender and his
current crime of conviction meets the definition of a crime of
extreme sexual violence. Thus, the sentencing judge followed the
mandates of the sentencing guidelines and imposed a departure
sentence in accordance with K.S.A. 21-4719(b). We find no error.

The judgment of the Court of Appeals affirming the district
court is affirmed as modified and the judgment of the district
court is affirmed.